EXHIBIT 4.8
LIMITED RECOURSE AGREEMENT
LIMITED RECOURSE AGREEMENT, dated as of May 16, 1997 (the "Agreement"),
made by Whitehall Street Real Estate Limited Partnership V, a Delaware limited
partnership ("Whitehall LP"), EXOR Group S.A., a Luxembourg investment holding
company ("EXOR"), Xxxxx Xxxxxxxxxxx, an individual residing in the State of New
York ("Rockefeller"), Tishman Speyer Crown Equities, a Delaware general
partnership ("Tishman Speyer"), and Bonito Investments, LDC, a Bahamas limited
duration company ("Bonito"), in favor of NATIONSBANK OF TEXAS, N.A., as agent
(in such capacity, the "Agent") for the lenders (the "Lenders") parties to the
Credit Agreement referred to below.
RECITALS
Pursuant to the Credit Agreement, dated as of May 16, 1997 (as amended,
supplemented or otherwise modified from time to time, the "Credit Agreement"),
among RCPI Trust, a Delaware business trust (the "Borrower"), the Lenders and
the Agent, the Lenders have severally agreed to make loans to the Borrower upon
the terms and subject to the conditions set forth therein, such loans to be
evidenced by the Notes issued by the Borrower thereunder. The Key Principals (as
hereinafter defined) indirectly own all of the outstanding common equity
interests in the Borrower. It is a condition precedent to the obligation of the
Lenders to make their respective loans to the Borrower under the Credit
Agreement that the Key Principals shall have executed and delivered this
Agreement to the Agent for the ratable benefit of the Lenders.
NOW, THEREFORE, in consideration of the premises and to induce the Agent
and the Lenders to enter into the Credit Agreement and to induce the Lenders to
make their respective loans to the Borrower under the Credit Agreement, each Key
Principal hereby agrees with the Agent, for the ratable benefit of the Lenders,
as follows:
1. Defined Terms. (a) Unless otherwise defined herein, terms defined in the
Credit Agreement and used herein shall have the meanings given to them in the
Credit Agreement.
(b) The following terms shall have the following meanings:
"Foreign Jurisdiction": any jurisdiction other than the United States of
America or any State thereof.
"Foreign Key Principal": any Key Principal which is organized under the
laws of a Foreign Jurisdiction.
"Joint Recourse Obligation": with respect to (a) any Lien voluntarily
granted or consented to by the Borrower in respect of any Property at any time
other than such Liens permitted under the Credit Agreement, the obligation to
pay all amounts and to take all such other actions as are necessary to cause
such Lien to be immediately released from the Property,
including, without limitation, the obligation to pay an amount sufficient
immediately to discharge any debt, judgment, liability or other obligation
secured by such Lien, and (b) any settlement, judgment or decree arising out of
or in connection with any suit, litigation, investigation or other proceeding
based on a claim that there was an alleged material misstatement or omission in
the RCPI Proxy Disclosure (including without limitation any such settlement,
judgment or decree arising from (i) the action pending in the U.S. District
Court for the District of Delaware captioned Charal Investment Co. x.
Xxxxxxxxxxx, et al., or (ii) any state or federal civil or criminal proceeding
or investigation relating in whole or in part to a claim that there was any
alleged material misstatement or omission in the RCPI Proxy Disclosure) entered
against or entered into by any Key Principal or any other Person (including,
without limitation, any present or former director or officer of RCPI, Holdings
or any predecessor) involving in the aggregate a liability (to the extent not
paid by insurance, or covered by insurance with respect to which the insurance
company has acknowledged coverage) of $15,000,000 or more with respect to which
the Borrower has any liability (whether pursuant to an indemnification
obligation or otherwise), the obligation to pay all amounts and to take all such
other actions as are necessary to cause such liability of the Borrower to be
satisfied or discharged or such judgment or decree to be vacated, discharged,
stayed or bonded pending appeal.
"judgment currency": as defined in Section 19.
"Key Principal": any of EXOR, Whitehall LP, Rockefeller, Tishman Speyer and
Bonito.
"Key Principal Net Worth Letter": with respect to any Key Principal, as of
any date, a balance sheet certified by, or a letter or certificate, in form
satisfactory to the Agent, addressed to the Agent and the Lenders and executed
by, the chief financial officer, the certified public accountant, or other
Person with sufficient familiarity with financial statements of such Key
Principal (setting forth the basis of such Person's knowledge), which shall set
forth the net worth, cash flow, recourse obligations and other contingent
obligations of such Key Principal as of such date, including the amount of such
net worth which is held in cash, cash equivalents or readily marketable
securities; provided, however, that no Key Principal shall be required to
deliver a Key Principal Net Worth Letter to Agent that is broader in scope than
the balance sheets or letters delivered to the Agent prior to the date of this
Agreement.
"Pro-Rata Recourse Obligations": collectively:
(i) any Obligations resulting from, arising as a result of, incurred
in reliance on, or which may become immediately due and payable as a result
of the fraud of the Borrower; and
(ii) the obligation to comply with, and cause the Borrower to comply
with, each of Sections 2.18, 5.3(b)(i), 5.5(b) and (c), and 5.9 of the
Credit Agreement, including liability to pay any amounts required to be
paid by the Borrower pursuant to such Sections 2.18, 5.3(b)(i), 5.5(b) and
(c), and 5.9.
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"Pro Rata Recourse Amount": with respect to any Key Principal, an amount
equal to $100,000,000 multiplied by the percentage set forth opposite such Key
Principal's name on Exhibit A hereto.
"RCPI Proxy Disclosure": collectively, (i) the Schedule 14A filed by RCPI
with the Securities and Exchange Commission on February 14, 1996, and the proxy
statement of RCPI, dated February 14, 1996 contained therein and sent to the
former stockholders of RCPI in connection with a meeting of stockholders of RCPI
held on March 25, 1996 soliciting approval of, among other matters, the
transactions contemplated by the Merger Agreement, including, without
limitation, any amendments or supplements to such Schedule 14A and proxy
statement, any preliminary proxy statement filed in connection therewith, and
all documents incorporated by reference in any thereof, (ii) any further
documents filed between February 14, 1996 and March 25, 1996 by RCPI, or any
Investor or any Affiliate of any thereof with the Securities and Exchange
Commission or comparable state authority, or disseminated to the former
stockholders of RCPI, in each such case in connection with such proxy statement
or meeting of stockholders of RCPI, and (iii) any press releases issued prior to
March 25, 1996 by or on behalf of RCPI or any of the Investors in connection
with the transactions contemplated by the Merger Agreement and such proxy
statement and filings prior to such meeting of stockholders of RCPI.
"Recourse Obligations": the collective reference to the Joint Recourse
Obligations and the Pro-Rata Recourse Obligations.
(c) The words "hereof," "herein" and "hereunder" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement, and section and paragraph
references are to this Agreement unless otherwise specified.
(d) The meanings given to terms defined herein shall
be equally applicable to both the singular and plural forms of such
terms.
2. Recourse. (a) The Key Principals hereby agree, (i) that they shall be
jointly and severally liable to the Agent on behalf of the Lenders and their
respective permitted successors and assigns for, (ii) that Agent on behalf of
the Lenders and their respective permitted successors and assigns shall have
recourse to the assets of the Key Principals, jointly and severally, for, and
(iii) that they shall, upon the demand of the Agent, for the ratable benefit of
the Lenders and their respective permitted successors and assigns, promptly and
completely pay and perform when due (whether at the stated maturity, by
acceleration or otherwise), the Joint Recourse Obligations.
(b) Each Key Principal hereby agrees (i) that it shall be severally and not
jointly liable to the Agent on behalf of the Lenders and their respective
permitted successors and assigns for, (ii) that Agent on behalf of the Lenders
and their respective permitted successors and assigns shall have recourse to the
assets of such Key Principal for, and (iii) that it shall, upon the demand of
the Agent, for the ratable benefit of the Lenders and their respective permitted
successors and assigns, promptly and completely pay and perform when due
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(whether at the stated maturity, by acceleration or otherwise), up to such Key
Principal's Pro Rata Recourse Amount, the Pro-Rata Recourse Obligations.
(c) Each Key Principal further agrees that it shall be liable to pay any
and all expenses (including, without limitation, all reasonable fees and
disbursements of counsel) which may be paid or incurred by the Agent and, at any
time after an Event of Default, any Lender, in enforcing any rights with respect
to, or collecting, any or all of the Recourse Obligations and/or enforcing any
rights with respect to, or collecting against, the Key Principals under this
Agreement. Such liability shall be joint and several to the extent such expenses
arise out of or relate to the Joint Recourse Obligations, and several, to the
extent such expenses arise out of or relate to the Pro-Rata Recourse
Obligations. This Agreement shall remain in full force and effect until the
Obligations are paid in full and the Commitments are terminated, notwithstanding
that from time to time prior thereto the Borrower may be free from any
Obligations.
(d) Each Key Principal agrees that the Obligations may at any time and from
time to time exceed the amount of the liability of such Key Principal hereunder
without impairing this Agreement or affecting the rights and remedies of the
Agent or any Lender hereunder.
3. No Subrogation. Notwithstanding any payment or payments made by any Key
Principal hereunder, such Key Principal shall not be entitled to be subrogated
to any of the rights of the Agent or any Lender against (i) the Borrower or any
right of offset held by any Lender for the payment of the Obligations until all
amounts owing to the Agent and the Lenders on account of the Obligations are
paid in full or (ii) any other Key Principal or any right of offset held by any
Lender for the payment of the Recourse Obligations until all amounts owing to
the Agent and the Lenders on account of the Recourse Obligations are paid in
full, nor shall any Key Principal seek or be entitled to seek any contribution
or reimbursement (x) from the Borrower in respect of payments made by such Key
Principal hereunder until all amounts owing to the Agent and the Lenders by the
Borrower on account of the Obligations are paid in full or (y) from any other
Key Principal or any other Person in respect of payments made by such Key
Principal hereunder until all amounts owing to the Agent and the Lenders on
account of claims made for Recourse Obligations are paid in full. If any amount
shall be paid by the Borrower to any Key Principal on account of such
subrogation rights at any time when all of the Obligations shall not have been
paid in full, or if any amount shall be paid by the Borrower or a Key Principal
to another Key Principal on account of such subrogation rights at any time when
all claims made for Recourse Obligations shall not have been paid in full, such
amount shall be held by such Key Principal in trust for the Agent and the
Lenders, segregated from other funds of such Key Principal, and shall, forthwith
upon receipt by such Key Principal, be turned over to the Agent in the exact
form received by such Key Principal (duly endorsed by such Key Principal to the
Agent, if required), to be applied against the Obligations or the Recourse
Obligations, as the case may be, whether matured or unmatured, in such order as
the Agent may determine.
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4. Amendments, etc. with respect to the Obligations; Waiver of Rights. Each
Key Principal shall remain obligated hereunder notwithstanding that any demand
for payment of any of the Obligations made by the Agent may be rescinded by such
party and any of the Obligations continued, and the Obligations, or the
liability of any other party upon or for any part thereof, or right of offset
with respect thereto, may, from time to time, in whole or in part, be renewed,
extended, amended, modified, accelerated, compromised, waived, surrendered or
released by the Agent, and any of the Loan Documents and any other documents
executed and delivered in connection therewith may be amended, modified,
supplemented or terminated, in whole or in part, as the Agent may deem advisable
from time to time, and any right of offset at any time held by the Agent or any
Lender for the payment of the Obligations may be sold, exchanged, waived,
surrendered or released. When making any demand hereunder against any Key
Principal, the Agent may, but shall be under no obligation to, make a similar
demand on the Borrower, and any failure by the Agent to make any such demand or
to collect any payments from the Borrower or any release of the Borrower shall
not relieve such Key Principal of its obligations or liabilities hereunder, and
shall not impair or affect the rights and remedies, express or implied, or as a
matter of law, of the Agent against such Key Principal. For the purposes hereof
"demand" shall include the commencement and continuance of any legal
proceedings. Without limiting, diminishing or otherwise modifying the liability
of any Key Principal hereunder, if the Agent makes a demand for payment on any
Key Principal the Agent hereby agrees that it will accept payment by the
Borrower.
5. Recourse Obligations Absolute and Unconditional. Each Key Principal
waives all notice of the creation, renewal, extension or accrual of any of the
Obligations and notice of or proof of reliance by the Agent or any Lender upon
this Agreement or acceptance of this Agreement, the Obligations, and any of
them, shall be deemed to have been incurred, or extended, amended or waived, in
reliance upon this Agreement; and all dealings between the Borrower and the Key
Principals, on the one hand, and the Agent and the Lenders, on the other hand,
likewise shall be presumed to have been had or consummated in reliance upon this
Agreement. Each Key Principal waives diligence, presentment, protest, demand for
payment and notice of default or nonpayment to or upon the Borrower or any Key
Principal with respect to the Obligations. Each Key Principal understands and
agrees that this Agreement shall be construed to be continuing, without regard
to (a) the validity, regularity or enforceability of the Credit Agreement, any
Note or any other Loan Document, any of the Obligations or any other collateral
security therefor or guarantee or right of offset with respect thereto at any
time or from time to time held by the Agent or any Lender, (b) any defense,
set-off or counterclaim (other than a defense of payment or performance) which
may at any time be available to or be asserted by the Borrower against the Agent
or any Lender, or (c) any other circumstance which constitutes, or might be
construed to constitute, an equitable or legal discharge of the Borrower for the
Obligations, or of the Key Principals under this Agreement, in bankruptcy or in
any other instance. When pursuing its rights and remedies hereunder against the
Key Principals, the Agent may pursue such rights and remedies as it may have
against the Borrower or any other Person or any right of offset with respect
thereto, and any failure by the Agent to pursue such other rights or remedies or
to collect any payments from the Borrower or any such other Person or to
exercise any such right of offset, or any release of the Borrower or any such
other Person or right of offset, shall not relieve any Key Principal of any
liability hereunder, and
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shall not impair or affect the rights and remedies, whether express, implied or
available as a matter of law, of the Agent and the Lenders against each Key
Principal. This Agreement shall remain in full force and effect and be binding
in accordance with and to the extent of its terms upon each Key Principal and
the successors and assigns thereof, and shall inure to the benefit of the Agent
and the Lenders, and their respective successors, endorsees, transferees and
assigns, until all the Obligations and the obligations of each Key Principal
under this Agreement shall have been satisfied by payment in full and the
Commitments shall be terminated, notwithstanding that from time to time during
the term of the Credit Agreement the Borrower may be free from any Obligations.
6. Reinstatement. This Agreement shall continue to be effective, or be
reinstated, as the case may be, if at any time payment, or any part thereof, of
any of the Obligations or the Recourse Obligations is rescinded or must
otherwise be restored or returned by the Agent or any Lender upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of the
Borrower or any Key Principal, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for, the
Borrower or any Key Principal or any substantial part of its property, or
otherwise, all as though such payments had not been made.
7. Payments. Each Key Principal hereby agrees that payments hereunder will
be paid to the Agent on demand without set-off or counterclaim in U.S. Dollars
at the office of the Agent specified in Section 9.2 of the Credit Agreement.
8. Representations and Warranties.
(a) CORPORATIONS: Each Key Principal that is a corporation hereby
represents and warrants that:
(i) it is duly organized, validly existing and, if applicable, in good
standing under the laws of the jurisdiction of its organization and has the
corporate power and authority and the legal right to own and operate its
property, to lease the property it operates as lessee and to conduct the
business in which it is currently engaged;
(ii) it has the corporate power and authority and the legal right to
execute and deliver, and to perform its obligations under, this Agreement,
and has taken all necessary corporate action to authorize its execution,
delivery and performance of this Agreement;
(iii) this Agreement has been duly executed and delivered on behalf of
such Key Principal, and constitutes a legal, valid and binding obligation
of such Key Principal enforceable in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered on a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing;
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(iv) the execution, delivery and performance of this Agreement will
not violate any provision of any Requirement of Law or material Contractual
Obligation of such Key Principal and will not result in or require the
creation or imposition of any material Lien on any of the properties or
revenues of such Key Principal pursuant to any Requirement of Law or
material Contractual Obligation of such Key Principal;
(v) no consent or authorization of, filing with, notice to, or other
act by or in respect of, any Governmental Authority or any other Person
(including, without limitation, any stockholder or creditor of such Key
Principal) is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement, other than such
consents, authorizations, filings, notices and other acts which have been
obtained, made or taken, as the case may be;
(vi) except for the litigation described in clause (b) of the
definition of "Joint Recourse Obligation" in Section 1, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of such Key Principal, threatened
by or against such Key Principal or against any of its properties or
revenues (i) with respect to this Agreement or any of the transactions
contemplated hereby, or (ii) which could have a material adverse effect on
the business, operations, property or financial or other condition of such
Key Principal; and
(vii) it has filed or caused to be filed all tax returns which, to its
knowledge, are required to be filed and has paid all taxes shown to be due
and payable on said returns prior to the same becoming delinquent or on any
assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP or other applicable
standard have been provided on the books of such Key Principal and other
than those, the non-payment of which would not have a material adverse
effect on such Key Principal, taking into consideration the assets and
liabilities of such Key Principal).
(b) LIMITED PARTNERSHIP, LIMITED DURATION COMPANY OR LIMITED LIABILITY
COMPANY: Each Key Principal that is a limited partnership, a limited duration
company or a limited liability company hereby represents and warrants that:
(i) it is duly organized, validly existing and, if applicable, in good
standing under the laws of the jurisdiction of its organization and has the
power and authority and the legal right to own and operate its property, to
lease the property it operates as lessee and to conduct the business in
which it is currently engaged;
(ii) it has the power and authority and the legal right to execute and
deliver, and to perform its obligations under, this Agreement, and has
taken all necessary action to authorize its execution, delivery and
performance of this Agreement;
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(iii) this Agreement has been duly executed and delivered on behalf of
such Key Principal, and constitutes a legal, valid and binding obligation
of such Key Principal enforceable in accordance with its terms, subject to
the effects of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating to or affecting
creditors' rights generally, general equitable principles (whether
considered on a proceeding in equity or at law) and an implied covenant of
good faith and fair dealing;
(iv) the execution, delivery and performance of this Agreement will
not violate any provision of any Requirement of Law or material Contractual
Obligation of such Key Principal and will not result in or require the
creation or imposition of any material Lien on any of the properties or
revenues of such Key Principal pursuant to any Requirement of Law or
material Contractual Obligation of such Key Principal;
(v) no consent or authorization of, filing with, notice to, or other
act by or in respect of, any Governmental Authority or any other Person
(including, without limitation, any stockholder, partner, owner or creditor
of such Key Principal) is required in connection with the execution,
delivery, performance, validity or enforceability of this Agreement, other
than such consents, authorizations, filings, notices and other acts which
have been obtained, made or taken, as the case may be;
(vi) except for the litigation described in clause (b) of the
definition of "Joint Recourse Obligation" in Section 1, no litigation,
investigation or proceeding of or before any arbitrator or Governmental
Authority is pending or, to the knowledge of such Key Principal, threatened
by or against such Key Principal or against any of its properties or
revenues (i) with respect to this Agreement or any of the transactions
contemplated hereby, or (ii) which could have a material adverse effect on
the business, operations, property or financial or other condition of such
Key Principal; and
(vii) it has filed or caused to be filed all tax returns which, to its
knowledge, are required to be filed and has paid all taxes shown to be due
and payable on said returns prior to the same becoming delinquent or on any
assessments made against it or any of its property and all other taxes,
fees or other charges imposed on it or any of its property by any
Governmental Authority (other than any the amount or validity of which are
currently being contested in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP or other applicable
standard have been provided on the books of such Key Principal and other
than those, the non-payment of which would not have a material adverse
effect on such Key Principal, taking into consideration the assets and
liabilities of such Key Principal).
(c) ROCKEFELLER hereby represents and warrants that:
(i) he has the legal right to execute and deliver this Agreement and
to perform his obligations hereunder;
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(ii) no consent or authorization of, filing with, or other act by or
in respect of, any arbitrator or Governmental Authority and no consent of
any other Person (including, without limitation, any creditor of such Key
Principal) is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement other than such
consents, authorizations, filings, notices and other acts which have been
obtained, made or taken, as the case may be;
(iii) this Agreement has been duly executed and delivered by him and
constitutes his legal, valid and binding obligation enforceable in
accordance with its terms, except as enforceability may be limited by
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity (whether enforcement is sought in proceedings in
equity or at law);
(iv) the execution, delivery and performance of this Agreement will
not violate any provision of any Requirement of Law or any of his material
Contractual Obligations and will not result in or require the creation or
imposition of any material Lien on any of his properties or revenues
pursuant to any Requirement of Law or any of his material Contractual
Obligations; and
(v) except for the litigation described in clause (b) of the
definition of "Joint Recourse Obligation" in Section 1 and claims made for
breach of fiduciary duty as an officer and/or a director of RCPI, no
litigation, investigation or proceeding of or before any arbitrator or
Governmental Authority is pending or, to his knowledge, threatened by or
against him or against any of his properties or revenues (i) with respect
to this Agreement or any of the transactions contemplated hereby, or (ii)
which could have a material adverse effect on his business, operations,
property or financial or other condition.
(d) FOREIGN KEY PRINCIPALS: Each Foreign Key Principal further represents
that:
(i) there are no Non-Excluded Taxes imposed by the United States or by
the Foreign Jurisdiction in which such Foreign Key Principal is organized
or has its principal place of business either (x) on or by virtue of the
execution or delivery of this Agreement or any other document to be
furnished hereunder, or (y) on any payment to be made by such Foreign Key
Principal; and
(ii) the courts of the jurisdiction in which such Foreign Key
Principal maintains its principal place of business should, in a properly
presented case, give effect to a judgment for money damages on this
Agreement duly entered by a New York court, subject to applicable exequatur
proceedings.
(e) Each Key Principal further represents and warrants that Exhibit A
hereto correctly sets forth the aggregate percentage equity interest in the
Borrower directly or indirectly owned by such Key Principal.
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(f) Each Key Principal further represents and warrants that the Key
Principal Net Worth Letter most recently delivered by such Key Principal was
true and correct as of the date thereof.
Each Key Principal agrees that the foregoing representations and warranties
shall be deemed to have been made by such Key Principal on the date of each
borrowing by the Borrower under the Credit Agreement on and as of such date of
borrowing as though made hereunder on and as of such date.
9. Covenants. Each Key Principal hereby covenants and agrees with the Agent
and each Lender that, from and after the date of this Agreement until the
Obligations are paid in full and the Commitments are terminated:
(a) Each Key Principal shall furnish to the Agent and each Lender, as soon
as available, but in any event within 90 days after the end of each calendar
year (or, in the case of EXOR, on or before July 15 of each year), a Key
Principal Net Worth Letter as of the end of such calendar year (or with respect
to EXOR, the fiscal year most recently ended) with respect to such Key
Principal.
(b) With respect to any Foreign Key Principal, it will make all payments
required to by made by it under this Agreement free and clear of, and without
deduction or withholding for or on account of, any present or future
Non-Excluded Taxes. If any Non-Excluded Taxes are required to be withheld from
any amounts payable to the Agent or any Lender hereunder, the amounts so payable
to the Agent or such Lender shall be increased to the extent necessary to yield
to the Agent or such Lender (after payment of all Non-Excluded Taxes) any such
amounts payable hereunder at the rates or in the amounts specified in this
Agreement. Whenever any Non-Excluded Taxes are payable by any Foreign Key
Principal, as promptly as possible thereafter such Foreign Key Principal shall
send to the Agent for its own account or for the account of such Lender, as the
case may be, a certified copy of an original official receipt received by such
Foreign Key Principal showing payment thereof. If such Foreign Key Principal
fails to pay any Non-Excluded Taxes when due to the appropriate taxing authority
or fails to remit to the Agent the required receipts or other required
documentary evidence, such Foreign Key Principal shall indemnify the Agent and
the Lenders for any incremental taxes, interest or penalties that may become
payable by the Agent or any Lender as a result of any such failure. The
agreements in this Section shall survive the termination of this Agreement and
the payment of all amounts payable hereunder.
(c) With respect to each Foreign Key Principal, it will maintain in New
York, New York a Person acting as its agent to receive on its behalf and on
behalf of its property service of process and capable of discharging the
functions of process agent of such Foreign Key Principal. Each Foreign Key
Principal shall be permitted to designate and so maintain such agent to serve
solely as agent for service of process on matters relating to this Agreement.
Each Foreign Key Principal shall provide to the Agent when requested from time
to time a notice setting forth the name and address of its process agent in such
location and a
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confirmation from such process agent acknowledging its appointment as process
agent and its undertaking to so act on behalf of such Foreign Key Principal.
10. Authority of Agent. Each Key Principal acknowledges that the rights and
responsibilities of the Agent under this Agreement with respect to any action
taken by the Agent or the exercise or non-exercise by the Agent of any option,
right, request, judgment or other right or remedy provided for herein or
resulting or arising out of this Agreement shall, as between the Agent and the
Lenders, be governed by the Credit Agreement and by such other agreements with
respect thereto as may exist from time to time among them, but, as between the
Agent and any Key Principal, the Agent shall be conclusively presumed to be
acting as agent for the Lenders with full and valid authority so to act or
refrain from acting, and no Key Principal shall be under any obligation, or
entitlement, to make any inquiry respecting such authority.
11. Notices. All notices, requests and demands to or upon the respective
parties hereto to be effective shall be in writing (including by facsimile
transmission) and, unless otherwise expressly provided herein, shall be deemed
to have been duly given or made (a) in the case of delivery by hand, when
delivered, (b) in the case of delivery by mail, three days after being deposited
in the mails, postage prepaid, (c) in the case of delivery by overnight courier,
one Business Day after being delivered to a nationally recognized overnight
courier service, with shipping charges paid for delivery on the next Business
Day, or (d) in the case of delivery by facsimile transmission, when sent and
receipt has been electronically confirmed, addressed as follows:
(a) if to the Agent or any Lender, at its address or transmission number
for notices provided in Section 9.2 of the Credit Agreement; and
(b) if to any Key Principal, at its address or transmission number for
notices set forth on Exhibit A hereto.
The Agent, each Lender and each Key Principal may change its address and
transmission numbers for notices by notice in the manner provided in this
Section.
12. Severability. Any provision of this Agreement which is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
13. Integration. This Agreement represents the agreement of each Key
Principal with respect to the subject matter hereof and there are no promises or
representations by the Agent or any Lender relative to the subject matter hereof
not reflected herein.
14. Amendments in Writing; No Waiver; Cumulative Remedies. (a) None of the
terms or provisions of this Agreement may be waived, amended, supplemented or
otherwise modified except by a written instrument executed by each Key Principal
and the
11
Agent, provided that any provision of this Agreement may be waived by
the Agent and the Lenders in a letter or agreement executed by the Agent or by
telex or facsimile transmission from the Agent.
(b) Neither the Agent nor any Lender shall by any act (except by a written
instrument pursuant to Section 14(a) hereof), delay, indulgence, omission or
otherwise be deemed to have waived any right or remedy hereunder or to have
acquiesced in any Default or Event of Default or in any breach of any of the
terms and conditions hereof. No failure to exercise, nor any delay in
exercising, on the part of the Agent or any Lender, any right, power or
privilege hereunder shall operate as a waiver thereof. No single or partial
exercise of any right, power or privilege hereunder shall preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
A waiver by the Agent or any Lender of any right or remedy hereunder on any one
occasion shall not be construed as a bar to any right or remedy which the Agent
or such Lender would otherwise have on any future occasion.
(c) The rights and remedies herein provided are cumulative, may be
exercised singly or concurrently and are not exclusive of any other rights or
remedies provided by law.
15. Section Headings. The section headings used in this Agreement are for
convenience of reference only and are not to affect the construction hereof or
be taken into consideration in the interpretation hereof.
16. Successors and Assigns. This Agreement shall be binding upon the
permitted successors and assigns of each Key Principal and shall inure to the
benefit of the Agent and the Lenders and their successors and assigns.
17. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.
18. Submission To Jurisdiction; Waivers. Each Key Principal hereby
irrevocably and unconditionally:
(a) submits for itself and its property solely with respect to any legal
action or proceeding relating to this Agreement, or for recognition and
enforcement of any judgment in respect thereof, to the non-exclusive personal
jurisdiction of the courts of the State of New York in New York County, the
courts of the United States of America for the Southern District of New York
sitting in the borough of Manhattan, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be brought in such
courts and waives any objection that it may now or hereafter have to the venue
of any such action or proceeding in any such court or that such action or
proceeding was brought in an inconvenient court and agrees not to plead or claim
the same;
12
(c) agrees that service of process in any such action or proceeding may be
effected by mailing a copy thereof by registered or certified mail (or any
substantially similar form of mail), postage prepaid, to such Key Principal at
its address set forth on Exhibit A hereto or in the case of any Foreign Key
Principal to its process agent referenced in Section 9(c) or at such other
address of which the Agent shall have been notified pursuant hereto;
(d) agrees that nothing herein shall affect the right to effect service of
process in any other manner permitted by law or shall limit the right to xxx in
any other jurisdiction; and
(e) waives, to the maximum extent not prohibited by law, any right it may
have to claim or recover in any legal action or proceeding referred to in this
Section any special, exemplary, punitive or consequential damages.
19. Judgment Currency. The obligations and liabilities of any Foreign Key
Principal hereunder to the Agent or any Lender shall, notwithstanding any
judgment in a currency (the "judgment currency") other than Dollars, be
discharged only to the extent that on the Business Day following the receipt by
such Agent or Lender (as the case may be) of any sum adjudged to be so due in
the judgment currency such Agent or Lender (as the case may be) may in
accordance with normal banking procedures purchase Dollars with the judgment
currency; if the amount of Dollars so purchased is less than the sum originally
due to such Agent or Lender (as the case may be) in Dollars, such Foreign Key
Principal agrees, as a separate obligation and notwithstanding any such
judgment, to indemnify such Agent or Lender (as the case may be) against such
loss, and if the amount of Dollars so purchased exceeds the sum originally due
to such Agent or Lender (as the case may be), such Agent or Lender (as the case
may be) agrees to remit to such Foreign Key Principal such excess.
20. Acknowledgments. Each Key Principal hereby acknowledges that:
(a) it has been advised by counsel in the negotiation, execution and
delivery of this Agreement and the other Loan Documents to which it is a party;
(b) neither the Agent nor any Lender has any fiduciary relationship with or
duty to such Key Principal arising out of or in connection with this Agreement
or any of the other Loan Documents to which it is a party, and the relationship
between each Key Principal, the Borrower and the other Loan Parties, on one
hand, and Agent and Lenders, on the other hand, in connection herewith or
therewith is solely that of debtor and creditor; and
(c) no joint venture is created hereby or by the other Loan Documents or
otherwise exists by virtue of the transactions contemplated hereby among the
Lenders or among any Key Principal, the Borrower, any of the other Loan Parties
and the Lenders.
21. WAIVERS OF JURY TRIAL. EACH KEY PRINCIPAL AND THE AGENT HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL ACTION OR
PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AND FOR ANY
COUNTERCLAIM THEREIN.
13
22. Recourse. Notwithstanding anything to the contrary contained herein or
in any other Loan Document, the Agent and the Lenders hereby agree that no
shareholder, member, partner, other equity holder, officer, director, employee
or agent of any Key Principal that is not a natural person shall have any
liability (contractual or otherwise) in respect of any Recourse Obligation and
the Agent and the Lenders shall not have recourse against the assets of any
shareholder, member, partner, other equity holder, officer, director, employee
or agent of any such Key Principal in respect of any Recourse Obligations;
provided, that the foregoing shall not limit any Recourse Obligation of any Key
Principal.
14
IN WITNESS WHEREOF, the undersigned has caused this
Agreement to be duly executed and delivered by its duly authorized
officer as of the day and year first above written.
WHITEHALL: WHITEHALL STREET REAL ESTATE
LIMITED PARTNERSHIP V
By: WH ADVISORS, L.P. V, general
partner
By: WH ADVISORS, INC. V, general
partner
By:
------------------------------
Name:
Title:
15
PROMETHEUS:
----------------------------------
Xxxxx Xxxxxxxxxxx
16
STATE OF )
) ss.
COUNTY OF )
On the _____ day of ___________, 1997, before me came Xxxxx Xxxxxxxxxxx, to me
known to be the individual described in and who executed the foregoing
instrument, and acknowledged that he executed the same.
Name:___________________________________
NOTARY PUBLIC, State of_________________
Commission No.__________________________
My Commission Expires:__________________
[NOTARIAL SEAL]
17
TISHMAN SPEYER: TISHMAN SPEYER CROWN EQUITIES
BY: TISHMAN SPEYER ASSOCIATES,
LIMITED PARTNERSHIP, its General
Partner
By:______________________________________
Name: Xxxxx Xxxxxx
Title: General Partner
BY: TSE LIMITED PARTNERSHIP, its
General Partner
By:_______________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: General Partner
18
EXOR: EXOR GROUP S.A.
By:_______________________________________
Name:
Title:
19
NIARCHOS: BONITO INVESTMENTS, LDC
By:_______________________________________
Name:
Title:
20
EXHIBIT A
KEY PRINCIPALS
----------------------------------------------------------------------------------------------------------------------------------
Key Principal Notice Address Percentage
----------------------------------------------------------------------------------------------------------------------------------
Whitehall LP 00 Xxxxx Xxxxxx 00.0%
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Financial Officer
Fax: 000-000-0000
----------------------------------------------------------------------------------------------------------------------------------
Rockefeller c/o Xxxxxxx X. Xxxxxxx 4.5455%
Room 5600
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax: 000-000-0000
with a copy to:
Milbank Tweed Hadley & XxXxxx
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Fax: 000-000-0000
----------------------------------------------------------------------------------------------------------------------------------
Tishman Speyer 000 Xxxxxxx Xxxxxx 0.0000%
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxxxx
Fax: 000-000-0000
with a copy to:
Xxxxx Xxxx & Xxxxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxx, Xx.
Fax: 000-000-0000
----------------------------------------------------------------------------------------------------------------------------------
A-1
EXHIBIT A
----------------------------------------------------------------------------------------------------------------------------------
EXOR Xxxxxxxxxxxx, 00 20.4545%
Zurich, SWITZERLAND CH804-1
Attn: N. Xxxxx Xxxx
Fax: 000 00 0 000 0000
with a copy to:
EXOR America, Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: G. Xxxxxx Xxxxx
Fax: 000-000-0000
----------------------------------------------------------------------------------------------------------------------------------
Bonito c/o Venus Shipping Company, S.A. 20.4545%
Villa Bijou
00 Xxxxxx xx xx Xxxxx
Xxxxx Xxxxx, XX 00000
MONACO
Fax: 000 000 00 000 000
with a copy to:
Milbank Tweed Hadley & XxXxxx
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxx
Fax: 000-000-0000
----------------------------------------------------------------------------------------------------------------------------------
A-2
